Bryan v. Superior Court

• Decision Date: 17 July 1972
• Citation: 498 P.2d 1079,102 Cal.Rptr. 831,7 Cal.3d 575
• Court: California Supreme Court
• Parties: , 498 P.2d 1079 Alfred Ray BRYAN, a Minor, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 29939. In Bank

Page 831

102 Cal.Rptr. 831

7 Cal.3d 575, 498 P.2d 1079

Alfred Ray BRYAN, a Minor, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent The PEOPLE, Real Party in Interest.

L.A. 29939.

Supreme Court of California,

In Bank.

July 17, 1972.

Peter Bull, San Francisco, Robert L. Walker, Berkeley, Edward H. Steinman, San Francisco, and Lawrence R. Young, Bellflower, for petitioner.

No appearance for respondent.

Joseph P. Busch, Dist. Atty., Harry Wood, Robert J. Lord, Arnold T. Gumunski and Daniel L. Bershin, Deputy Dist. Attys., for real party in interest.

WRIGHT, Chief Justice.

Alfred Ray Bryan seeks extraordinary writs to restrain pending criminal proceedings against him and to mandate further juvenile court proceedings in connection with the charged crime.

Respondent, sitting as a juvenile court in prior proceedings, found that petitioner was within its jurisdiction because he admitted committing an unlawful killing when he was 16 years old. (Welf. & Inst.Code, § 602.) ¹ The court committed him to the Youth Authority but the authority refused to accept the commitment and petitioner was returned for further juvenile proceedings. (§§ 780, 1737.1.) The court then found that petitioner was not a proper subject to be dealt with under the Juvenile Court Law and ordered his prosecution under the general criminal law. This finding and order were made pursuant to that portion of section 707 which provides that 'if . . . a minor who was 16 years of age or older at the time of the commission of an offense and who was committed therefor by the (juvenile) court to the Youth Authority, is returned to the court by the Youth Authority . . ., the court may make a finding . . . that the minor is not a fit and proper subject to be dealt with under (the Juvenile Court Law) . . ., and the court shall direct the district attorney . . . to prosecute the person under the applicable criminal statute . . ..'

In support of his applications for a writ of prohibition to restrain the prosecution for murder and a writ of mandate to compel the juvenile court to reconsider its determination that he is not amenable to its treatment, petitioner contends that the provisions of section 707 quoted above are unconstitutional. He argues that the provision purports to permit a second subjection to jeopardy of a criminal prosecution after a final disposition of a juvenile court proceeding which resulted in a first subjection to jeopardy for the same offense. Petitioner further contends that the Youth Authority's rejection of his commitment and the juvenile court's ensuing determination that he was not a proper subject for treatment under the Juvenile Court Law are based on an impermissible and mechanical application of a categorical policy of the Youth Authority Board instead of on the individualized evaluation required by statutory and decisional law.

For the reasons hereafter stated we reject petitioner's contentions but, for the guidance of court and counsel in the pending criminal prosecution, we explain that in that prosecution evidence of admissions made by petitioner in the juvenile court proceedings cannot be used against him.

History of the Proceedings

In 1969 when petitioner was 16 years old petitions were filed in the juvenile court, the first alleging that he murdered Jerry Maddox and the second alleging that he assaulted F. X. Benavidez with intent to commit murder. The juvenile court found that he was not amenable to the treatment available through its facilities. It made this finding without having evaluated all the evidence concerning petitioner's case which was presented to it. In Alfred B. v. Superior Court (1970) 3 Cal.3d 718, 91 Cal.Rptr. 605, 478 P.2d 37, we held that the juvenile court must reevaluate petitioner's fitness for treatment as a juvenile on the basis of the entire record of his case considered in light of factors set out in Jimmy H. v. Superior Court (1970) 3 Cal.3d 709, 91 Cal.Rptr. 600, 478 P.2d 32.

On March 23, 1971, the juvenile court conducted a three-stage hearing, first on the issue of fitness, then on the issue of jurisdiction, and finally on the issue of disposition. By stipulation the evidence on the reconsideration of fitness consisted of the transcript of the 1969 fitness hearing, the reports concerning petitioner which had been prepared in 1969, and a further probation officer's report which was dated March 31, 1971, but which was based on the 1969 materials. The court found that petitioner was a proper subject to be dealt with under the Juvenile Court Law.

On the jurisdictional issue the court first, in response to an unopposed motion of petitioner's counsel, dismissed the petition charging aggravated assault. It then read the murder charge to petitioner and advised him of his rights to remain silent, to have a hearing and require proof beyond a reasonable doubt, to confront and cross-examine the witnesses against him, and to subpoena witnesses on his own behalf. Petitioner and his counsel waived further time to prepare for the jurisdictional hearing and petitioner expressed his understanding that his admission of the allegations of the petition would waive the constitutional rights which had been explained by the court and that the court, upon such admission, would commit him to the Youth Authority. The court accepted his limited admission that he 'killed Jerry Maddox.'

Petitioner's counsel next waived any right to an additional probation report and additional time to prepare for the dispositional hearing. The court found that the allegations of the section 602 petition were true, adjudged petitioner a ward, and committed him to the Youth Authority. ²

The Youth Authority's case services supervisor, Mr. Holler, and his staff reviewed the records and reports of petitioner's history which had been before the court. By letter of April 22, 1971, Mr. Holler advised the juvenile court that the authority would not accept its commitment of petitioner. The letter summarized petitioner's history, pointed out that the authority's normal period of control over petitioner would expire in two and one-half years when he became 21 years old, and stated that policy established by the Youth Authority Board required at least two years' institutionalization of wards committed for offenses involving violence. The letter concluded that the predicted six months which would remain for petitioner's adjustment and treatment on parole would be 'totally inadequate. . . . Our initial review of this case leads us to believe the ward has the potential for a successful treatment program within the Youth Authority. However, we do not believe it can be achieved within the time available.'

At a further juvenile court hearing on May 26, 1971, testimony of Mr. Holler elaborated the bases of the authority's refusal to accept the court's commitment of petitioner. The court determined that since the authority would not accept petitioner and since no other juvenile court programs appropriate to his case were available, it had no alternative under section 707 except to transfer him for prosecution under the general criminal law.

Application of the Double Jeopardy Bar to Transfers Under Section 707

Section 707 provides that the juvenile court may transfer to the criminal court a minor who is accused of crime and who is found unfit for juvenile court treatment (cl. 1) 'At any time During a hearing upon a petition alleging that a minor is, by reason of violation of any criminal statute or ordinance, a person described in Section 602' or (cl. 2, under which the court acted in petitioner's case) 'if, At any time after such a hearing, a minor who was . . . committed . . . to the Youth Authority, Is returned to the court by the Youth Authority pursuant to Section 780 ³ or 1737.1. ⁴ ' (Italics added.)

After the enactment of those provisions for transfer we decided in Richard M. v. Superior Court (1971) 4 Cal.3d 370, 93 Cal.Rptr. 752, 482 P.2d 664 that the constitutional bars against twice being placed in jeopardy for the same offense (U.S.Const. Amend. V; Cal.Const. art. I, § 13) apply to juveniles. Therefore, we must now determine whether the statutory provisions for transfer are in accord with the protection of the guarantees against double jeopardy. A fundamental policy underlying those guarantees is that "the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." (Benton v. Maryland (1969) 395 U.S. 784, 795--796, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707, quoting from Green v. United States (1957) 355 U.S. 184, 187--188, 78 S.Ct. 221, 2 L.Ed.2d 199.)

The courts have traditionally recognized, however, that the double jeopardy bar does not protect a person charged under the criminal law from all harassment of repetitive proceedings. Thus the concept that jeopardy does not attach until the accused is placed on trial permits the vexation of repeated defective preliminary proceedings. (United States ex rel. Rutz v. Levy (1925) 268 U.S. 390, 393, 45 S.Ct. 516, 69 L.Ed. 1010; Collins v. Loisel (1923) 262 U.S. 426, 431, 43 S.Ct. 618, 67 L.Ed. 1062; Ex parte Fenton (1888) 77 Cal. 183, 19 P. 267.) Moreover, 'a concept of continuing jeopardy that has application where criminal proceedings against an accused have not run their full course' permits retrial and exposure to the risk of a second conviction after a former conviction is set aside for error prejudicial to the accused. (Price v. Georgia (1970) 398 U.S. 323, 326, 90 S.Ct. 1757, 1759, 26 L.Ed.2d 300; United States v. Ball (1896) 163 U.S. 662, 672, 16 S.Ct. 1192, 41 L.Ed. 300.)

A related concept of continuing jeopardy was invoked in In re J. (1971) 17 Cal.App.3d...